eNotes: Liability – July 2019

TT&H LAWYERS IN COURT

TT&H Attorneys Scott McCarroll and Julia Morrison win summary judgment in premises liability action.

Attorneys Scott McCarroll and Julia Morrison win summary judgment for a grocery store in a Dauphin County premises liability action.  Plaintiff claimed she slipped and fell on remnants of grapes in the produce aisle and injured her right shoulder and back. Scott and Julia were awarded summary judgment due to a lack of actual or constructive notice of the alleged dangerous condition.

Questions about this case can be directed to Scott McCarroll, at (717) 237-7131 or smccarroll@tthlaw.com, or to Julia Morrison, at (717) 441-7056 or jmorrison@tthlaw.com.

CLIENT ADVISORY

PENNSYLVANIA CLIENT ADVISORY

Failure to preserve the amount of video evidence requested by plaintiff required adverse inference charge at trial.

On June 19, 2019, the Pennsylvania Superior Court issued a new opinion in the spoliation case of Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017, 2019 Pa. Super. 94. In its most recent decision, the Superior Court reaffirmed that the plaintiff is entitled to a new trial. The Court found that an adverse inference instruction should have been given by the Trial Court due to the defendant’s failure to preserve video evidence of the area of the incident.

The Superior Court had issued its initial ruling on March 27, 2019. That decision was reported in our April 2019 Liability eNotes (https://www.tthlaw.com/enotes-liability-april-2019). However, as reported in last month’s Liability eNotes, the Court subsequently granted reconsideration and withdrew its initial opinion. As part of its most recent ruling, the Court considered whether it was necessary to perform an analysis of the proportionality requirements applicable to electronically stored information, as set forth in the Rules of Civil Procedure and the case of PTSI, Inc. v. Haley, 71 A.3d 304 (Pa. Super. 2013) (no sanction for unintentional destruction of emails pursuant to company policy when no litigation was foreseeable).  In its new opinion in Marshall, the Superior Court found that consideration of the proportionality requirements was not necessary and that the Haley case did not apply.  The Court’s reasoning was essentially identical to that of its initial opinion. The Court found that the defendant had notice of an impending lawsuit and the relevance of the video evidence, but unilaterally chose to preserve only a small amount and delete the remainder.  As the adverse inference instruction was warranted, and not given, the case was remanded for a new trial.

Questions about this advisory can be directed to Rebecca Sember-Izsak, at (412) 926-1446 or resember@tthlaw.com.

VIRGINIA CLIENT ADVISORY

Virginia enacts new discovery rules pertaining to electronically stored information.

The Commonwealth of Virginia has implemented an addition to Rule 4:1(b)(7), which applies to discovery of electronically stored information (ESI).  Beginning January 1, 2019, if a party receiving a request for discovery of ESI determines that an ESI protocol is necessary, it must, within 21 days of being served with the request, propose an ESI protocol. Under the newly implemented rule, the ESI protocol must set forth: (1) an initial list of custodians; (2) a date range; (3) production specifications; (4) search terms; and (5) the identification and return of inadvertently revealed privileged materials.

Questions about this advisory can be directed to Lacey Conn, at (202) 945-9502 or lconn@tthlaw.com.

SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARIES

In re Asbestos Prods. Liab. Litig.

United States District Court for the Eastern District of Pennsylvania

No. 18-3622

Decided: June 6, 2019

Federal District Court declares that the statutory basis for Pennsylvania’s exercise of general personal jurisdiction over a foreign corporation is unconstitutional.

Background

Plaintiff brought an asbestos action in Philadelphia County against 48 Defendants, including HIC, a successor to Avondale Shipyard.  Although Plaintiff claimed that he was exposed to asbestos in Pennsylvania, it was undisputed that Plaintiff’s only possible exposure to asbestos linked to HIC occurred outside of the Commonwealth.  As there was no basis for specific jurisdiction, the Court addressed whether it could exercise general jurisdiction over HIC.  In contrasting Third Circuit precedent that relied upon Pennsylvania’s Long Arm Statute with the 2014 United States Supreme Court opinion in Daimler v. Bauman, the Court held that despite Pennsylvania’s statute requiring that a foreign corporation wishing to do business in Pennsylvania register itself in Pennsylvania, the Court could no longer exercise general jurisdiction over a foreign corporation on this basis in light of Daimler v. Bauman.

Holding

In a strongly worded 28 page opinion, the Court held that “Pennsylvania’s statutory scheme . . . offends the Due Process Clause and is unconstitutional,” and that the Third Circuit’s pre-Daimler precedent was “irretrievably irreconcilable with the teachings of Daimler, and can no longer stand.”  Because Daimler is the law of the land, a Pennsylvania or Federal Court may only exercise general jurisdiction over a foreign corporation in Pennsylvania, if it was incorporated in or has its principal place of business in Pennsylvania.

Questions about this case can be directed to Joe Holko, at 610-332-7005 or jholko@tthlaw.com.

 

Roth v. Target Corp.

United States District Court for the Eastern District of Pennsylvania

2019 U.S. Dist. LEXIS 84252

Decided: May 20, 2019

Where a Complaint contains sufficient notice of federal jurisdiction, removal must be accomplished within thirty days after service.

Background

A customer fell in a store and sustained bilateral olecranon fractures requiring operative fixation, along with bilateral knee contusions, cosmetic disfigurement, severe pain disorder, loss of work, and loss of life’s pleasures. Some or all of the injuries were permanent. The Complaint contained an ad damnum clause seeking damages in excess of the $50,000 arbitration limit in state court.

After receiving a case management memorandum demanding $1.2 million some months into the litigation, the store removed the case to Federal Court. The customer moved to remand, claiming that the removal was untimely. The Federal Court granted the motion.

Holding

The thirty-day time limit for removal of a case based upon diversity of citizenship and amount in controversy generally begins to run upon service of the Complaint. If the initial case is not removable as filed, the notice of removal may be filed thirty days after receipt of an amended pleading, motion, order, or other paper from which it may be first ascertained that the case is one which is or became removable. Determination of the amount in controversy begins with a reading of the complaint; the inquiry should be objective and not fanciful, “pie in the sky,” or wishful; and all doubts must be resolved in favor of a remand. Here, the initial Complaint contained sufficiently specific references to injuries—particularly, the bilateral elbow fractures requiring operative fixation—which should have put the store on notice that more than $75,000 was at stake. Thus, removal after receipt of the $1.2 million demand was untimely.

Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.

 

PENNSYLVANIA CASE SUMMARIES

Justice v. Pa. State Police Trooper Lombardo

Pennsylvania Supreme Court

No. 17 EAP 2018

Decided: May 31, 2019

Pennsylvania Supreme Court rules that a state trooper accused of using excessive force during a routine traffic stop was not immune from suit under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8251-8522.

Background

During a traffic stop on I-76 in Philadelphia, Trooper Lombardo issued the Plaintiff tickets for driving with a suspended license and failure to use a turn signal. As Plaintiff waited alongside her vehicle, which was parked near the highway barrier, a dispute occurred between the two. According to Plaintiff, Trooper Lombardo “wrestled” her, which resulted in a strained arm, wrist, and back. The Trooper disputed Plaintiff’s account and claimed that Plaintiff was uncooperative and that he had simply grabbed her arm to pull her into the patrol car.

Trooper Lombardo argued that he was entitled to immunity from suit pursuant to the Political Subdivision Tort Claims Act (PSTCA) as his conduct was “incidental to” his authority as a state trooper. In this intentional tort action, the jury found that Trooper Lombardo was acting outside the scope of his employment based on his use of force during the incident; as a result, he was unable to benefit from the protections of the PSTCA. On appeal, the Commonwealth Court reversed, finding that “Trooper Lombardo’s use of force was within the scope of his employment because it was ‘incidental to’ his authority to regulate the highways and make warrantless arrests.”

Holding

The Supreme Court ruled that the Commonwealth Court erred in disturbing the underlying verdict, holding that “reasonable minds could have concluded that Trooper Lombardo’s conduct was actuated in such a manner so as to evince entirely personal motives rather than a professional purpose, substantiating further the jury’s conclusion that he acted outside the scope of his employment.” In reviewing the evidence in the light most favorable to the Plaintiff, the Court held that “sufficient competent evidence existed upon which the jury could have found that Trooper Lombardo acted outside the scope of employment.”

Questions about this case can be directed to John Lucy, at (717) 441-7067 or jlucy@tthlaw.com.

 

Pysher v. Clinton Twp. Volunteer Fire Co.

Pennsylvania Commonwealth Court

No. 1237 C.D. 2017

Decided: May 8, 2019

Trial Court erred in holding that a volunteer fire company was a local agency subject to Pennsylvania’s Right to Know Law without first conducting a factual investigation.

Background

Plaintiff served a volunteer fire company with a request for records under Pennsylvania’s Right to Know Law (RTKL). The fire company refused to provide the records, reasoning that it was not a “local agency” subject to the RTKL. Plaintiff appealed to Pennsylvania’s Office of Open Records, which determined that the fire company was a local agency and was obligated to respond to the request. The fire company appealed to the Trial Court, which upheld the decision of the Office of Open Records. The fire company appealed.

Holding

The Commonwealth Court reversed. The Court agreed that the RTKL only applies to “local agencies.” However, the Court explained that just because an entity, such as the fire company, is considered a “local agency” under the Tort Claims Act, does not automatically mean that the entity is considered a “local agency” under another statute. The Court remanded the matter to the Trial Court with instructions to conduct a fact-finding hearing to determine whether the fire company was a “local agency” under the framework of the RTKL, which would require determining the degree of governmental control exercised over the fire company, the nature of the fire company’s functions, and the degree of financial control exercised over the company by the Township.

Questions about this case can be directed to Matt Clayberger, at (717) 237-7150 or mclayberger@tthlaw.com.

 

Shirey v. Berks Area Reading Transp, Auth.

Pennsylvania Commonwealth Court

No. 356 C.D. 2017

Decided: April 30, 2019

Trial Court properly granted summary judgment where Plaintiff offered no direct evidence that snow or ice caused his fall.

Background

Plaintiff, a vision impaired employee of the Berks County Association for the Blind (BARTA), alleged in the Complaint that as he was walking on a sidewalk from the Association to a BARTA van waiting to transport him home, he slipped and fell when he walked around a large mound of snow and ice on the sidewalk. Plaintiff asserted claims against the Association as the owner of the sidewalk and BARTA for not assisting him to safely embark and disembark from the van. Due to short-term memory loss, Plaintiff was not deposed. Further, although Plaintiff was accompanied by a coworker, no one witnessed the fall. The BARTA van driver testified to there being no snow or ice on the walkway, but that a little piece of sidewalk was sticking up, which she reported caused Plaintiff to trip and fall. The driver also drew a diagram depicting a line of snow encroaching the sidewalk.

BARTA sought summary judgment on grounds of immunity, and the Association sought summary judgment on the grounds that Plaintiff failed to produce evidence that snow and ice caused him to fall. The Trial Court granted both motions. Plaintiff appealed only the judgment in favor of the Association.

Holding

In affirming the Trial Court’s order in favor of the Association, the Court reasoned that Plaintiff had presented no evidence that snow and ice caused his fall. Absent a genuine issue of material fact as to the cause of the fall, the Court affirmed the Trial Court’s grant of summary judgment.

Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.

 

Rice v. Diocese of Altoona-Johnstown

Pennsylvania Superior Court

No. 97 WDA 2018

Decided: June 11, 2019

Superior Court re-examines the operation of the statute of limitations in the context of alleged clerical sex abuse.

Background

In Pennsylvania, tort-based suits generally must be filed within two years of the date that the cause of action accrued. There are exceptions to this rule, two of which are the discovery rule and the fraudulent concealment doctrine. Under the discovery rule, the time for filing a complaint is tolled until a plaintiff knows or reasonably should have known of his or her injury and that the defendant’s conduct was the cause. The fraudulent concealment doctrine states that a defendant cannot rely on the statute of limitations if he or she, through fraud or concealment, caused the plaintiff to relax his or her vigilance or deviate from his or her right to inquire into the facts.

Plaintiff Rice claimed that in the mid-1970s, when she was between the ages of 9 and 14 and a parishioner in the Diocese of Altoona-Johnstown, she was sexually abused by a priest. In addition to attending the church and Catholic school, Ms. Rice cleaned the rectory where her alleged abuser lived, and she played the organ and sang at masses. In March 2016, a grand jury issued a report detailing a systematic cover-up of pedophile clergy in the Diocese. Ms. Rice subsequently filed suit against the Diocese and two of its former bishops. The Trial Court dismissed Ms. Rice’s claims on the grounds that they were time- barred.

Holding

The Superior Court reversed. The Superior Court held that the statute of limitations might not apply because a jury could find that: (a) Ms. Rice could not have been reasonably expected to discover the Defendants’ purported conduct prior to the issuance of the grand jury report and (b) Ms. Rice’s relationship with the priest or Diocese went beyond that of a mere parishioner such that the Defendants owed a fiduciary duty to her, and their purported role in concealing the priest’s behavior triggered the application of the fraudulent concealment doctrine. The Court also concluded that Plaintiff’s conspiracy claim was not barred by statute of limitations because Ms. Rice was claiming that: (a) the Defendants’ conduct continued up until January 2016 when her alleged abuser was removed from ministry and (b) she had suffered new injuries after learning of the behavior detailed in the grand jury report.

Questions about this case can be directed to Jeanette Ho, at (412) 926-1449 or jho@tthlaw.com.

 

Smith v. Wells

Pennsylvania Superior Court

2019 Pa. Super. 181

Decided: June 7, 2019

A driver can be found negligent per se when he violates the assured clear distance rule of 75 Pa. C.S. §3361.

Background

In this negligence claim, Plaintiff’s stopped vehicle was rear-ended by Defendant’s vehicle on the Pennsylvania Turnpike, leading to a four car pile-up. During trial, Defendant conceded that the accident was his “fault . . . no question about it.” At no point did he ask the jury to find that he had driven carefully. However, despite Plaintiff moving for a directed verdict that Defendant negligently drove his vehicle and so breached the standard of care as a matter of law, the Trial Court denied the motion and authored a verdict slip asking the jury if it found the Defendant was negligent. The jury answered that question in the negative. Plaintiff moved for judgment notwithstanding the verdict on the question of negligence, and filed a post-trial motion on the same, both of which were denied by the Trial Court.

On appeal, Plaintiff asked the Superior Court to decide whether the evidence established negligence by Defendant warranting a directed verdict or judgment notwithstanding the verdict. The Superior Court answered that question in the affirmative, admonishing the Trial Court for failing to follow the Rules of Statutory Construction when applying 75 Pa.C.S.A. § 3361 to the facts. The relevant portion of the statute reads: “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.” The Court noted that “[b]y its plain language, violation of this statute’s second clause established [Defendant’s] negligence per se.”

Holding

The Superior Court affirmed that Section 3361 is a “unified statute on safe-driving speeds and distances, and we must give all of its clauses force and effect.” It held that Section 3361 prohibits two distinct forms of illegal driving, in this case, driving at any speed that prevents the driver from fully braking before striking a car, pedestrian, or other object ahead. “The latter violation, if committed, gives rise to negligence per se on the part of the driver striking the car, pedestrian or other object ahead” (as long as there are no sudden emergencies or affirmative defenses that would provide a valid excuse for disobedience of the law). The case was remanded for a new trial on causation and damages.

Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or jmorrison@tthlaw.com.

 

Mikolawski v. Young

Pennsylvania Superior Court

No. 1721 EDA 2018

Decided: May 14, 2019

Defendant’s alleged negligence was not the proximate cause of Plaintiffs being in the zone of danger in the context of a negligent infliction of emotional distress claim.

Background

Three juveniles escaped from a placement facility owned by the Defendant and then burglarized Plaintiffs’ home. During the burglary, one of the juveniles brandished a log of firewood over Plaintiff-husband’s head in the presence of Plaintiff-wife. Plaintiffs sustained no physical impact or injury during the burglary.

Plaintiffs filed suit against the Defendant, asserting claims of negligent infliction of emotional distress (NIED). Defendant filed a Motion for Summary Judgment, arguing that Plaintiffs failed to satisfy any of the four scenarios under which liability may attach for NIED, as the Defendant’s alleged negligence did not result in any physical impact to Plaintiffs. At oral argument, Plaintiffs argued that but for Defendant’s alleged negligence, Plaintiffs would not have been in the zone of danger. The Court granted Defendant’s Motion for Summary Judgment, finding that whether the Defendant’s alleged negligence placed Plaintiffs in the zone of danger was an issue of proximate cause, which Plaintiffs failed to establish. The Plaintiffs appealed, arguing in part that the Court improperly raised the issue of proximate cause sua sponte.

Holding

The Court affirmed the Trial Court’s grant of summary judgment in favor of Defendant. The Court found that Plaintiffs argued that they were in the zone of danger, and that such a claim is a question of proximate cause. The Court noted that Plaintiffs’ counsel conceded this during oral argument, and, therefore, found Plaintiffs’ argument, that the Trial Court improperly raised the issue of proximate cause sua sponte, unpersuasive. Further, Plaintiffs failed to identify any evidence bearing on the impact rule so as to defeat summary judgment.

Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or jdenicola@tthlaw.com.

 

Brown v. Quest Diagnostics Clinical Labs, Inc.

Pennsylvania Superior Court

2019 Pa. Super. 142

Decided: May 1, 2019

A motion for substitution of a deceased party may be filed more than one year after the party’s death, without a reasonable explanation for the delay in substitution.

Background

In December 2013, Decedent filed a Complaint alleging medical malpractice. In April 2015, she died during the course of litigation. Approximately two months after the Decedent’s death, a Suggestion of Death was filed according to Pennsylvania Rule of Civil Procedure 2355. In September 2015, a personal representative was appointed and granted Letters Testamentary and named Executrix of the estate. In February 2016, the Personal Representative filed a Motion to Substitute Plaintiff, pursuant to Pennsylvania Rule of Civil Procedure 2352, but “nothing was done to bring the motion to the Court’s attention for consideration.” In November 2017, the Court held a hearing on the motion and dismissed the action for (1) failure of the Personal Representative to timely substitute another party after the death of Decedent and (2) failure of the Personal Representative to provide a reasonable explanation for the delay. The Personal Representative filed an appeal in the Superior Court.

Holding

The Superior Court reversed, holding that the Trial Court erred in dismissing the Personal Representative’s Motion to Substitute Plaintiff. The Court held that while 20 Pa.C.S. § 3375 requires that an estate be raised, letters of administration be issued, and a personal representative be appointed within one year of the suggestion of death being filed, this statute does not govern the timing of the substitution of the personal representative.

Questions about this case can be directed to Chloe Gartside, at (215) 564-2928 or cgartside@tthlaw.com.

 

Livingston v. Greyhound Lines, Inc.

Pennsylvania Superior Court

No. 318 EDA 2017

Decided: April 29, 2019

Evidence of alcohol or drug consumption is admissible in a personal injury action only where there is sufficient evidence that reasonably shows intoxication (by chemical testing) or impairment at the time of the accident.

Background

A Greyhound bus collided with the rear of a tractor trailer. Plaintiffs—who were passengers in the bus—and the tractor-trailer driver claimed the accident was caused by the Greyhound bus driver falling asleep. A jury found in favor of Plaintiffs and the truck driver and against Greyhound and the bus driver. On appeal, the Greyhound Defendants raised numerous issues including whether the Trial Court erred in excluding an alleged admission by the truck driver to another individual that he was “high.” However, there was no evidence that the truck driver appeared intoxicated or impaired, and he passed a drug influence evaluation by State Police nine hours after the accident.

Holding

The Court held that evidence of alcohol or drug consumption, including a party’s admission of alcohol or drug consumption, must be excluded absent evidence of chemical testing sufficient to show intoxication or other evidence of impairment at the time of the accident either in the party’s admission or from the testimony of other witnesses. Here, the witness testimony was insufficient to show intoxication or unfitness because the statements made were ambiguous and indefinite on when the driver allegedly was high, and the witness lacked personal knowledge of consumption of the truck driver.

Questions about this case can be directed to Jolee Bovender, at (717) 255-7626 or jmbovender@tthlaw.com.

 

MARYLAND CASE SUMMARY

Shilling v. Nationwide Ins. Co.

Maryland Court of Special Appeals

No. 1154, Sept. Term 2017 & No. 515, Sept. Term 2018
Decided: May 4, 2019

The earliest date for commencing limitations for coverage under an underinsured motorist contract is the date the insured/injured party accepts the tortfeasor’s insurance company’s policy limits offer and executes a release in favor of the tortfeasor.

Background

Plaintiff was involved in an automobile accident with an underinsured driver in 2011. The underinsured driver had policy coverage of $20,000, which Plaintiff accepted. In April 2013, Plaintiff’s insurance provider, Nationwide, waived its subrogation rights against the underinsured tortfeasor and agreed to settlement. In February 2014, Plaintiff signed a release accepting the $20,000 and releasing the tortfeasor and its insurance company from liability.

In September 2016, Plaintiff filed a complaint against Nationwide, seeking damages in excess of $20,000 under her Underinsured Motorist (“UIM”) coverage with Nationwide. Nationwide filed a motion to dismiss the Complaint, arguing that it was barred by the statute of limitations. Nationwide argued that limitations began to run on April 23, 2013, when Plaintiff agreed to the proposed settlement. Plaintiff argued that the statute of limitations was triggered when she signed the release. The Circuit Court dismissed Plaintiff’s claim, agreeing that the statute of limitations began to run when Nationwide consented to the settlement on April 23, 2013. Plaintiff appealed.

Holding

The Court of Special Appeals reversed, holding that the Circuit Court erred in its determination that the date on which Nationwide agreed to the settlement triggered the statute of limitations. Rather, the date on which Plaintiff signed the release accepting the $20,000 and releasing the tortfeasor and its carrier from liability was the date that triggered the statute of limitations. Thus, Shilling’s suit against Nationwide, filed on September 23, 2016, was not time-barred by the three year statute of limitations.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.

 

NEW JERSEY CASE SUMMARIES

Paladino v. Auletto Enterprises, Inc.

New Jersey Superior Court, Appellate Division

No. A-0232-18T1, 2019 N.J. Super. LEXIS 81

Decided: June 6, 2019

There is no per se or presumptive rule that materials prepared or collected before litigation are not prepared “in anticipation of” litigation.

Background

Plaintiff was a guest at a wedding reception at Defendant’s catering facility. As she was walking down a staircase, she fell and was injured. Shortly after the accident, Defendant gave notice to its insurer, which then retained an investigator. The claims examiner later certified that her purpose in retaining the investigator was to “prepare a defense for [defendant] in the event that [plaintiff] filed a lawsuit.” The claims examiner also certified that the insurer was not disputing coverage and did not hire the investigator to look into whether the insurer owed coverage to Defendant.

After Plaintiff filed a negligence suit, Defendant disclosed in interrogatories that its investigator had taken photos of the staircase and had recorded statements from three of Defendant’s employees. Plaintiff sought production of these materials, but Defendant asserted that they were protected by the work-product privilege, which, under Rule 4:10-2(c), protects materials “prepared in anticipation of litigation.” Plaintiff filed a motion to compel the materials, which the Trial Court granted, reasoning that because the photos and statements were obtained before litigation, the insurer “may have” had interests apart from protecting its insured’s rights, and that the materials were therefore not “prepared in anticipation of litigation,” as required for protection under the Rule. Defendant appealed.

Holding

The Appellate Division reversed, holding that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared “in anticipation of” litigation under Rule 4:10-2. Rather, courts must make a “fact-specific analysis.” Among other things, the Trial Court here needed to evaluate the claims examiner’s certification. The Appellate Division remanded the issue to the Trial Court to conduct the analysis.

Questions about this case can be directed to Charles Skriner, at (908) 574-0513 or cskriner@tthlaw.com.

 

Winstead v. Yorkshire Village

New Jersey Superior Court, Appellate Division

2019 N.J. Super. Unpub. Lexis 1276

Decided: June 5, 2019

A question of whether a landlord breached a duty and created an unreasonable and foreseeable risk of harm to a plaintiff is for a jury.

Background

Katie Winstead was injured when she fell as she walked through the exterior entry doors of the Yorkshire Village apartments, where her daughter lived. After filing suit, Ms. Winstead died and her daughter pursued the claim as Plaintiff. Plaintiff witnessed her mother’s fall and testified that her mother, who used a walker, lost her balance and fell as “she was reaching for the door.” While Plaintiff admitted that she assumed her mother tried to grab the door to prevent it from hitting her, she explained that the door was sweeping back and forth at the time. It was undisputed that the door malfunctioned. Plaintiff testified that ever since she moved into the complex, the door had periodically malfunctioned and that she had notified management of this. The door would get stuck in the open position, but oscillate back and forth. Plaintiff’s expert opined that the failure to perform daily and yearly safety inspections, which would have disclosed the “loose arm” causing the malfunction, was the proximate cause of the fall. The Trial Court granted Defendant Yorkshire Village’s Motion for Summary Judgment and Plaintiff appealed.

Holding

The Appellate Court reversed, observing that the trial judge appeared to have concluded that the door’s malfunction was not a proximate cause of the accident because Decedent, using her walker, could have gone through the door without touching it and therefore did not have a reasonable fear of being struck. The Appellate Court reiterated a landlord’s duty of care to protect a tenant extends to people who are on the premises with the tenant’s consent. Contrary to the Trial Court’s opinion, a jury need not find Decedent was in fear of the door striking her to find proximate causation. The jury could determine that Decedent lost her balance as she instinctively reached toward the door as it oscillated toward her. The Appellate Court rejected Defendants’ argument that Plaintiff was unable to say whether the door had any impact on Decedent falling over. Based on the timing and sequence of events, a jury could reasonably infer that the Decedent, who required the assistance of a walker, lost her balance when she instinctively and protectively extended her arm as a malfunctioning automatic door swung toward her, even if ever so slightly.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or pmamounas@tthlaw.com.

 

DC CASE SUMMARY

HVAC Specialist, Inc., v. Dominion Mech. Contractors, Inc.

District of Columbia Court of Appeals

Nos. 16-CV-1220 & 16-CV-1278

Decided: February 28, 2019

D.C. Court of Appeals upholds dismissal of all claims arising from subcontract with unlicensed HVAC subcontractor and finds affirmative defense of illegality cannot be waived where contract violates public policy.

Background

These appeals arise from the D.C. Superior Court’s dismissal of a lawsuit filed by HVAC Specialist Inc. (HVAC) against Dominion Mechanical Contractors, Inc. (Dominion), for breach of a subcontract with Dominion to perform heating, ventilation, and air conditioning work on a renovation project at an elementary school. HVAC did not have a D.C. business license at the time that the parties entered into the subcontract or during the performance of its work under the subcontract, despite D.C. law requiring a license. After HVAC experienced problems with payment to its employees and suppliers, Dominion terminated the subcontract for HVAC’s alleged default. HVAC then sued Dominion for breach of contract and quantum meruit. Dominion countersued HVAC for breach of contract and termination by default and moved to dismiss the Complaint on the grounds that the subcontract was illegal and void.

In opposition to Dominion’s Motion to Dismiss, HVAC argued that Dominion waived its illegality defense because it had not pleaded the defense in its answer. HVAC also argued that Dominion was estopped from raising the illegality defense because Dominion had filed a counterclaim for damages and breach of the allegedly void contract. The Superior Court granted Dominion’s Motion to Dismiss and found that the subcontract was illegal, and thus, void, because HVAC did not have the proper license to do business in the District of Columbia as a refrigeration and air conditioning contractor. Both parties appealed.

Holding

The D.C. Court of Appeals upheld the dismissal of all claims and found that Dominion had not waived the defense of illegality because such a defense is not waivable where the subject contract violates a D.C. law that is designed to protect the public, such as the licensing requirement. The Court of Appeals further found that Dominion’s counterclaim for breach of the subcontract did not estop it from asserting the affirmative defense of illegality because such a finding would require the court to recognize the validity of an illegal contract. The Court of Appeals did not consider the merits of Dominion’s counterclaims, but found the claims to be moot because Dominion argued that it was entitled to recover from HVAC only in the event that the court allowed HVAC’s claims to proceed. Dismissals affirmed.

Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or pbiberstein@tthlaw.com.